Ace Fire Underwriter's Insurance v. ITT Industries, Inc.

55 A.D.3d 346, 865 N.Y.S.2d 197

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 7, 2008
• Status: Published

Opinion

Order, Supreme Court, New York County (Herman Cahn, J.), entered July 17, 2007, which, insofar as appealed from in this declaratory judgment action seeking a judicial determination as to insurance coverage, granted defendant Liberty Mutual Insurance Company’s motion to dismiss the complaint as against it, and directed entry of judgment in its favor, unanimously affirmed, with costs.

The motion court, after examining the submitted documentary evidence, appropriately concluded that plaintiffs could not, as a matter of law, maintain a claim for contribution as against Liberty Mutual (see Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1999], affd 94 NY2d 659 [2000]; CPLR 3211 [a] [7]). The evidence establishes that plaintiffs and Liberty Mutual were not coinsurers of the same risk during the same period of time (see Pennsylvania Manufacturers’ Assn. Ins. Co. v Liberty Mut. Ins. Co., 39 AD3d 1161 [2007], lv denied 9 NY3d 810 [2007]; HRH Constr. Corp. v Commercial Underwriters Ins. Co., 11 AD3d 321, 323 [2004], lv denied 5 NY3d 705 [2005]). Concur— Tom, J.P, Friedman, Buckley, Acosta and Freedman, JJ.